Obama's drug-sentencing quagmire

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward. But when Obama announced his annual commutations last month, only eight were given. That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

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The differing treatment of what would otherwise be identical cocaine-related offenses is often attributed to racial bias, as federal lawmakers chose to take a far sterner approach to controlling the types of illegal drugs sold in inner-city America rather than in white-collar precincts. Obama has long decried the “unfair system” that often sent African-American drug criminals to jail for longer terms than their white counterparts.

“Because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year,” Obama declared in 2013.

But after vowing to review the sentences of potentially thousands of nonviolent offenders, Obama’s Justice Department has yet to make much progress, as inmates anxiously await decisions. Lawyers involved in the process say they are wrestling with the huge flood of applications and struggling to determine which judge-ordered sentences may have been influenced by the crack-powder disparity, amid a three- or even four-tier review process and the ever-present fear of releasing a prisoner who might go on to commit a violent crime.

“The resources are woefully inadequate to address this number of applications,” one lawyer involved in the process said. “It’s an enormous undertaking that was announced with great fanfare and promises being made without much consideration about the resources needed to get the promises fulfilled.”

With too few government lawyers available to handle the applications, the Obama administration has turned to private lawyers and groups to prepare the petitions. Four organizations — the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers and the American Bar Association — stepped up to form a consortium known as Clemency Project 2014 and to recruit more than 1,500 lawyers to handle the cases on a pro bono basis.

While any prisoner can submit a commutation request directly to the Justice Department, some lawyers claim that the close coordination between the Clemency Project and the administration suggests that prisoners going through the project will have a faster, inside track. The attorneys say comments from project organizers have reinforced that impression.

Administration officials insist the outside groups have no official role. All applications will be reviewed by Justice Department lawyers before recommendations are sent to the White House, they say. However, officials acknowledge that trained attorneys can help prisoners submit “well-prepared” applications that will speed processing by the relatively small staff at the department’s Office of the Pardon Attorney.

But even with the controversial assistance from outside groups, so far only a trickle of applications has been submitted by those organizations to the Justice Department, sources said. None of those were among the eight approved by Obama last month, all of which came from thousands of petitions already on file with the Justice Department.

“So many people are expecting a lot,” said Doug Berman, a prominent criminal-sentencing specialist and law professor at Ohio State University. “I just think we’re making it much too hard, too proceduralized and, until the president starts vindicating that work with lots of [positive] outcomes, I remain kind of cynical and frustrated.”

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing .

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added.

Obama’s aides say it’s too soon to begin to take stock of a clemency effort that was only formally announced in April, although Justice Department officials first discussed the plan publicly last January.

White House Counsel Neil Eggleston said the rate of commutations is likely to pick up from the eight granted this year. “I would anticipate an uptick of that number,” he said.

The White House lawyer also said the Justice Department is on the verge of working through a significant volume of cases: “I’m confident in the next short period of time their activity is going to ramp up.”

However, officials declined to discuss any numerical goals for the clemency drive or to provide any details on increased staffing to accommodate the clemency effort. In addition, the administration would not commit to having all the applications processed by the time the president leaves office.

At his year-end news conference, Obama didn’t directly reference his commutation drive, but he did signal a desire to make reducing the number of federal prisoners part of his legacy.

“This is the first time in 40 years where the federal prison population and the crime rate have gone down at the same time, which indicates the degree to which it is possible for us to think smarter about who we are incarcerating, how long, how we deal with nonviolent offenders, how we deal with drug offenders,” Obama said. “We can do a better job and save money by initiating some of these reforms.”

Outsourcing a presidential prerogative?

Obama’s drive to increase the number of presidential commutations has been fueled in part by his view that recent legislation reining in overly long drug sentences unwisely neglected to reduce the sentences of prisoners already serving long terms, current and former officials say.

But the relatively small Office of the Pardon Attorney wasn’t prepared to handle such a high volume of cases, so officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases.

Still, the involvement of advocacy groups is unusual and, to some, inappropriate. Some conservatives have complained that routing applications for early release through these organizations amounts to Obama abdicating responsibility for managing the clemency process.

“The question is, can the president outsource his clemency and pardon authority? And that’s what he seems to be doing here. It’s another case where the president, it appears, is abusing his authority,” said Tom Fitton of Judicial Watch. “These groups don’t share a concern for public safety.”

Some liberal-leaning lawyers and clemency advocates have their own complaints. They say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said. “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”

A Justice Department official denied that applications by the Clemency Project will receive special treatment.

“We’re not giving Clemency Project 2014 any special priority,” said the official, who asked not to be named. “This is not to say applications coming from the Clemency Project might not possibly be of better quality,” the official added, alluding to officials’ hope that the project can help prisoners make their best case for early release.

In June, Judicial Watch filed a Freedom of Information Act lawsuit demanding correspondence between the outside groups and DOJ, hoping to expose backdoor deals between the Clemency Project and the government. A judge has given the department until February to respond.

In addition, sources told POLITICO that questions were also raised inside the project about whether its work with the Justice Department might fall under a sunshine law governing official advisory panels, which could require the groups to open their work to the public. However, DOJ lawyers who looked into the matter concluded the law does not apply.

Indeed, the Justice Department denies there is any official relationship between the consortium and the department. “They are not an advisory committee at all,” a Justice official said. “The Clemency Project is completely separate from us.”